Billeder på siden
PDF
ePub

is matter in fact; and therefore it shall be holpen by averment, whether of them it was that the parties intended should. pass. So if I grant my tenement in the parish of St. Dunstan's, and I have two tenements there; this uncertainty shall be supplied by averment of intention.

But if I set forth my grant by quantity; then it shall be supplied by election, and not by averment.

As if I grant ten acres of wood in Sale, where I have a hundred acres; whether I say it in my deed or no that I grant out of my hundred acres, yet here there shall be an election in the grantee, which ten he will take. And the reason is plain for the presumption of law is, where the thing is only nominated by quantity, that the parties had an indifferent intention which should be taken; and there being no cause to help the uncertainty by intention, it shall be holpen by election.

But in the former cases the difference holdeth, where it is expressed, and where not. For if I recite, Whereas I am seised of the manor of North S. and South S. I lease unto you unum manerium de S. there it is clearly an election: and so if I recite, Whereas I have two tenements in St. Dunstan's, I lease unto you unum tenementum, there it is an election. Contrary law it is in the cases before, where I take no knowledge of the uncertainty; for there it is never an election, but an averment of intention: except the intent were of an election, which may also be specially averred.

Another sort of ambiguitas latens is correlative unto this: for this ambiguity spoken of before is, when one name and appellation doth denominate divers things; and the second is, when the same thing is called by divers names.

As if I give lands to Christ-Church in Oxford, and the name of the corporation is Ecclesia Christi in Universitate Oxford; this shall be holpen by averment, because there appears no ambiguity in the words: for the variance is matter in fact.

But the averment shall not be of the intention, because it doth not stand with the words. For in the case of equivocation the general intent includes both the special, and therefore stands with the words: but so it is not in variance; and therefore the averment must be of matter that doth induce a cer

66

tainty, and not of intention: As to say, that the precinct of Oxford," and of "the University of Oxford," is one and the same; and not to say, that the intention of the parties was, that the grant should be to Christ-Church in the University of Oxford.

I have conjecturally substituted "certainty" for "quantity." One MS. has a

blank.

READING

ON THE

STATUTE OF USES.

« ForrigeFortsæt »